Secondary Rules Research Articles

The Role of H. L. A. Hart’s «Rule of Recognition» in Contemporary Anglo-American Legal Positivism

The article explores the role of the theory of «rules of recognition» by Oxford professor H.L.A. Hart in the contemporary theory of Anglo-American legal positivism, introduced by him in his central work «The Concept of Law» (1961), which has a significant influence on contemporary legal theory and philosophy. The authors reveal the content and meaning of the concept of «rules of recognition» as part of the secondary rules – «rules about rules» or «procedural rules» which determine the criteria for the validity of law along with the «rules of change» and the «rules of adjudication» in H.L.A. Hart’s terminology. The authors demonstrate the correlation with the «Grundnorm» of German legal philosophter H. Kelsen, which is more common in the Ukrainian legal theory, and which justifies the existence of constitutional norms as fundamental ones which determine the recognition of law by society and its individuals. The authors analyze the main positions of H.L.A. Hart’s followers – J. Raz, M. Kramer, B. Bix, S. Shapiro and others – regarding this theory and highlights the criticism of its individual provisions. The authors highlight how H.L.A. Hart tried to explain by the «rules of recognition» how law at the fundamental level is a matter of social convention (agreement between people inside the inhabited society), defending one of the components of legal positivism – the thesis of social fact (social sources of law thesis). The authors examine the interdependence between law and coercion by the State, the role of social practice in society’s subordination to law, the role of moral norms in the formation of law, in particular, the «rule of recognition», the correlation between the concepts of «rule of recognition» and «legal validity», and the problem of law enforcement by judges and governmental officials of the «rule of recognition». The authors summarize how H.L.A. Hart eliminates morality from the content of law in motivating judges and governmental officials to apply the rules of law, clarifies the position of legal positivism on the issue of the grounds for society’s submission to law, and demonstrates how the «empirical» theory of recognition prevails over the «analytical» theory, using R. Alexy terminology.

REGULATING THE STATUS OF OFFICIALS OF THE REGIONAL INTERGOVERNMENTAL ORGANISATIONS IN SOUTHEAST EUROPE: A QUEST FOR AN INTERNATIONAL CIVIL SERVICE

The article explores how the constituent instruments and secondary rules of the selected three regional intergovernmental organisations in Southeast Europe (Energy Community, Transport Community, Regional School of Public Administration) have incorporated some key legal concepts related to the status of international officials - professional independence of international officials and exclusivity of international service; recruitment standards; and the legal remedies for protecting the rights of international officials. The article, at the first place, defines the notion of international civil service, and elaborates, based on the legal texts of a number of international organisations and theoretical writings, the international practice in regulating the above specified concepts. The article than analyses and assesses how these concepts have been addressed in the relevant legal documents of the selected organisations. Finally, the article concludes that the explored legal texts provide for the guarantees of professional independence of the officials and contain the elaborated rules on recruitment aiming at selecting qualified staff and ensuring the geographical equilibrium within the secretariats. However, certain shortages have been identified and explained in relation to the existence of adequate legal remedies for protecting staff, particularly through the judicial proceedings.

‘Here Be Dragons’: Mapping the Legal Contours of Jus Cogens in International Law

The purpose of this article is to demystify jus cogens rules by trying to map their legal contours. After defining jus cogens and providing a theoretical scaffolding drawn from elementary works on legal theory, the household jus cogens prohibition of genocide is analysed in light of such notions. As a result, jus cogens norms are characterised both as primary rules of behaviour and as secondary rules of change for legal production, constituting an international public order that serves as a tool for international law to safeguard human security.

Конфликт между Палестиной и Израилем: динамика международно-правовой квалификации

International law has played an ambiguous role in resolving the conflict between Palestine and Israel: on the one hand, the UN General Assembly and Security Council assessed Israel’s activities in the occupied Palestinian territories by applying its rules; on the other hand, it de facto authorised the formation of the state of Israel and the occupation of Palestine in violation of the Palestinians’ right to self-determination. This article is a continuation of other articles published in 2018 in the Russian Law Journal. After summarising the main stages of the conflict’s development and highlighting its elements, the author identifies the features of international law which influence the qualification of the conflict, describes the main instruments used for the qualification, identifies the peculiarities of the legal rhetoric of the both parties, and focuses on the three most important problems of the qualification. He then assesses the prospect of the judicialisation of the conflict (its referral to international courts) and the application of the law of international responsibility to it. In the author’s view, the real regulators of the conflict are military power and political calculations; this conflict therefore reveals two important features of contemporary nternational law: first, it reveals the inherent inefficiency of the secondary rules of international law and its institutional mechanisms, unable to ensure the high values proclaimed by the primary norms; second, it confirms K. Marx’s famous thesis – “Between Equal Rights the Force Decides”. Indeed, the principle of formal equality, which is the very essence of the international order, does not exclude but presupposes recourse to force to resolve conflicts in which each party is able to formulate arguments based on international law.

Legal System in the Perspectives of H.L.A Hart and Lawrence M. Friedman

This article presents an analysis of the views of H.L.A Hart and Lawrence Friedman on the legal system from different perspectives. Through a comparative approach, this article identifies key concepts introduced by both scholars and highlights points of convergence and divergence between them. The research methodology used is a literature review, where primary and secondary sources, including . written works, books, and scientific articles authored by Hart and Friedman, are collected and analysed.. The author then conducts a comparative analysis to gain a deeper understanding of their views. The research findings indicate that H.L.A Hart views the legal system as a combination of primary and secondary rules that play a role in maintaining social order. On the other hand, Lawrence M. Friedman considers it as a product shaped by contextual and historical factors. Their perspectives provide a comprehensive understanding of the nature and function of the legal system. This article has implications for legal theory and serves as a foundation for further research on the legal system within the context of Hart and Friedman's views.

Indigenous Australia and the pre-legal society in HLA Hart’s The Concept of Law

The continuing existence and operation of the traditional law of Aboriginal and Torres Strait Islander peoples has – relatively recently – been explicitly acknowledged in Australian law. In emerging case law on the subject, the High Court of Australia has confirmed the common law recognition of the survival of Indigenous Australian law. However, in determining what it is that is recognized by the common law – in interpreting Indigenous Australian ‘traditional laws and customs’ – the High Court has disregarded the knowledge reposed in those with authority or expertise in Indigenous Australian law, relying instead upon concepts and assumptions from the jurisprudence of English legal philosopher, HLA Hart. The influence of Hart’s theory in the Australian High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’ is problematic, because it contains an obvious pre-legal–legal dualism reminiscent of the ‘state of nature’ – ‘civil society’ mechanism that was instrumental in the application of terra nullius to Australia. At the heart of The Concept of Law lies the notion of progression from a ‘primitive community’ with only primary rules, to an advanced legal system with a combination of both primary and secondary rules. In this article, I investigate how Indigenous Australians are positioned in relation to Hart’s pre-legal–legal dualism. I examine the ‘primitive’, pre-legal society in The Concept of Law, and its counterpart, the advanced legal system, to analyze the position of Indigenous Australian societies and law in Hart’s scheme. Finally, I analyze the construction of the dualism and consider its impact on the High Court’s interpretation of Indigenous Australian ‘traditional laws and customs’.

Shared State Responsibility for Land-Based Marine Plastic Pollution

AbstractPlastic litter is introduced into the oceans from land-based sources located in many countries around the world. Marine plastic pollution may therefore be attributable to multiple states, resulting in shared state responsibility. This article discusses the issue of shared state responsibility for land-based marine plastic pollution by examining (i) primary rules of international law concerning the prevention of land-based marine plastic pollution; (ii) secondary rules of international law on this subject; and (iii) possible ways of strengthening the primary rules. It concludes that the barrier for the invocation of state responsibility may become higher in cases of shared state responsibility. Three cumulative solutions to this problem are proposed: elaborating the obligation of due diligence, strengthening compliance procedures, and interlinking regimes governing the marine environment and international watercourses.

How to Change Law in Classical India

In his celebrated book The Concept of Law, H. L. A. Hart posits three secondary rules in a legal system: recognition, change, and adjudication. In this paper, I look at the second category: the means provided within the Indian legal system by which laws, in this case dharma, can be changed. The category of recognition provides us with means of knowing what the laws are. In modern systems, this is done through the passage of laws in a duly constituted legislature. The ancient Indian system did not have a provision for a legislative body. Instead, law as dharma was to be discovered rather than enacted: it was thought to be found in the Veda (vedamulatva concept) and, secondarily, in the texts known as smrtis. Law is thus eternal and, in theory, immutable; it cannot be changed. But, in spite of the theory, society and culture do change and demand laws that reflect those changes. The hermeneutical tradition of India provided means by which such change, foreclosed de jure, could be enacted de facto. This paper will analyse several of these techniques, including the yuga theory, the dharma of smaller social and geographical units, and, quite interestingly, the opprobrium of the people (lokavidvista).

Introduction to Brian H. Bix, Svein Eng, and Giorgio Ridolfi on Alf Ross

Introduction to Brian H. Bix, Svein Eng, and Giorgio Ridolfi on Alf Ross

Making Law Possible

Making Law Possible

Towards planetary nexus governance in the Anthropocene: An earth system law perspective

AbstractNexus governance recognises that sustainability concerns such as water, energy, and food security are interlinked and provides an alternative to fragmented governance. Although it has been applied mostly in the domestic context, the need for nexus governance is also apparent at a planetary scale, as highlighted by interacting planetary boundaries, global telecoupling, and global tipping cascades. However, international environmental law is unable to facilitate what we call ‘planetary nexus governance’. This is mainly because international environmental law lacks an ecological Grundnorm and because its primary rules of conduct remain fragmented in the absence of effective secondary rules on how primary rules should relate to each other. Recognising this challenge, scholars have recently proposed earth system law as a new framework to rethink, in an integrated way, law in an Anthropocene context. Building on this framework, we suggest that international environmental law should adopt a unifying Grundnorm such as planetary integrity. We also suggest that international institutional law, as a body of secondary rules, has an important role to play in facilitating planetary nexus governance by bringing together fragmented bodies of international law. We briefly discuss ways in which international environmental law could reorientate itself to better facilitate planetary nexus governance.

Pragmatism, Logic, and Law

Pragmatism, Logic, and Law

Temporal Issues Relating to BIT Dispute Resolution

Abstract An investor–State tribunal formed under a bilateral investment treaty (BIT) may be called upon to determine its jurisdiction ratione temporis based on various ‘critical dates’ such as: the date of entry into force of the BIT; the date when the investment was made; the date when the investor acquired the requisite nationality; the date of the alleged breach; the date when the investor first acquired knowledge of the alleged breach and of its loss; and/or the date when the dispute arose. When confronted with such temporal issues, tribunals over the past two decades have often reverted to the ‘secondary’ rules found in the International Law Commission’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts, and found in the law of treaties. This article identifies a series of propositions that may be extracted from recent investor–State jurisprudence concerning those secondary rules, with particular attention to application of the rule on non-retroactivity. Except in relatively limited situations, tribunals appear disinclined to find temporal jurisdiction over breaches or disputes that are based on pre-BIT acts. Consequently, this article considers as well recent jurisprudence on whether the host State’s alleged breach has a continuing or composite character, thus overcoming any temporal bar. While it would be excessive to say that the secondary rules in this area have provided the perfect means for addressing temporal issues, they appear to have generated a comprehensible framework within which investor–State tribunals are successfully operating.

The Interplay Between EU Law and Regional Sea Conventions: Shaping Environmental Protection in Relation to Offshore Energy Production Across Europe?

Despite the EU’s ambitious goals regarding the expansion of marine renewables as a promising climate mitigation and energy security measure, the majority of hydrocarbon exploitation continues occurring offshore with more than 500 oil and gas installations operating in European seas. Given the grave environmental risks these activities pose, the EU has developed secondary rules with implications for the regulation of offshore energy generation. These normative developments have added an extra layer of regional, supra-national regulation of ocean energy production across European seas, which necessarily interacts with the simultaneously applicable rules under regional sea agreements. The article examines the implications of the normative interplay between EU law and regional sea agreements in terms of shaping the environmental regulation of offshore energy production across Europe. In that respect, it explores whether EU law instruments and the EU’s sophisticated institutional framework can enhance the rules and standards under the regional sea agreements, in terms both of adding normative content to them and supporting their enforcement. In light of the mutual cross-fertilization between the two applicable regimes, the article equally looks into the normative impact of regional sea conventions on the EU legal framework and its implementation in the context of offshore energy production. Offshore energy, regional sea agreements, normative interactions, marine environmental protection

Identification of New Compounds in Epimedium L. based on Flavonol Secondary Metabolism and High-Resolution Mass Spectrometry

To derive and verify the chemical structure of the new components in Epimedium, the laws of secondary metabolism and high-resolution mass spectrometry (HRMS) were combined. Based on the chemical literature of Epimedium, the secondary metabolism network of flavonols was constructed, and the possible metabolites were deduced. After the metabolites, information was imported into PeakView software, and the ions with a mass error andlt; 5 ppm, correct isotope distribution, and containing secondary fragments were taken as the target compounds. The chemical structures of new compounds were identified and verified by combining Formula Finder, Mass Calculators, online databases (SciFinder, Reaxys, ChemSpider, etc.) and secondary fragmentation rules. In this study, a total of 4 metabolic pathways and 64 compound structures were deduced, and two new components and 12 new compounds were identified in 54 batches of Epimedium samples from 15 species by high-resolution mass spectrometry. Furthermore, the long and tedious steps of phytochemical separation were simplified, experimental costs were reduced, and a new idea and method were suggested for the analysis and identification of secondary metabolites with pharmacological activity.

Listening to Dissonance at the Intersections of International Human Rights Law

Within the United Nations (UN) human rights system, there are ten human rights treaties, each with its own treaty body or “Committee” that claims to offer the most authoritative interpretation of its corresponding treaty. Rather than resolving contests for primacy, this arrangement often generates conflicting interpretations of certain human rights. This Article is the first to shed light on conflicts between treaty bodies’ interpretations within the UN human rights system and to confront the question of how to resolve such conflicts at the intersections of international human rights law. The Article analyzes three case studies of such conflicts: 1) clashing interpretations relating to a child’s right to live with a family; 2) the right to life, reproductive access, and disability-selective abortion; 3) and involuntary detention and the right to liberty and security. These conflicts of interpretation matter to individuals seeking clarification of potential legal claims, as well as to legislators and regulators seeking to draft legislation to comply, or to evade compliance, with human rights standards. This Article then argues that secondary rules of interpretation are unlikely to resolve these conflicts, as they avoid necessary contests of meaning. Even with the uncertainties that enduring conflicts create, they are preferable to rules of resolution favoring uniformity and systemic integration, as the related risk is either the hegemonic elevation of majoritarian interests or the elevation of possibly biased perspectives. This Article thus proposes pragmatic institutional design tools to promote dialogue and engage each conflict in a context-specific fashion. Mitigating the conflicts between treaties in this way will help optimize the object of all international human rights law treaties.

Buddhist Rules About Rules: Procedure and Process in the (Theravāda) Buddhist Legal System

Abstract This Article examines rules of procedure and process that structure the Buddhist legal system in the Theravāda tradition, the dominant tradition of Buddhism in South and Southeast Asia. Drawing on important Buddhist texts written in Pāli as well as evidence from monastic legal practices in contemporary Sri Lanka, it argues that one can find within the Theravāda tradition a robust body of what H.L.A. Hart would call “secondary rules,” which determine how monks ought to apply prohibitions, manage disputes, and administer sanctions. These include detailed guidelines for making accusations, classifying legal cases, conducting hearings, settling disputes, examining litigants, evaluating evidence and witness testimony, appealing cases, prescribing penalties, and rehabilitating offenders. While these rules share similarities with other systems of state and religious law, Buddhist “rules about rules” not only ensure that disputes are settled properly but that the process of legal action itself both reflects and engenders favorable moral dispositions among monks. Underscoring both the similarities and differences between Buddhist law and other legal systems, this Article invites non-specialists to look (again) at the importance of Buddhist law—one of the oldest and most wide-spread systems of nonstate law—for the broader field of comparative legal studies, from which it has been largely absent.

From Kyoto to Paris: Problematic route of state responsibility for climate change

Anthropogenic climate change is one of the effects of carbon dioxide emissions from the use of fossil fuels. The Climate Change International Legal Regime consisting of primary rules set out in international treaties has been established to reduce greenhouse gas emissions. Due to the lack of special secondary rules in this regime, a violation of its primary rules leads to applying the general rules of state responsibility in DARSIWA. The question is whether these general rules are compelling enough. The article shows that the attribution of GHG emissions to states is complex due to the lack of a specific causal relationship and diversity of GHG emitters. In addition, there is no absolute and comprehensive obligation for GHG emission under the climate change legal regime, which could hold the emitting state responsible. In addition, assuming the compensation as an inherent consequence of responsibility, state accountability rules cannot effectively deal with climate change because of the cumulative nature of damages and the discarding of compensation from the relevant treaties, particularly from the Paris Agreement. Therefore, in addition to the legal liability of states, other dimension of their responsibility including ethical responsibility should also be considered as much as possible.

Humanitarian Intervention and the Law of State Responsibility

Abstract The primary rules of international law do not permit states to resort to force for humanitarian purposes. Some scholars have thus attempted to rely on the secondary rules of state responsibility to find a legal basis for forcible humanitarian intervention. In particular, three claims can be identified: that humanitarian intervention is justified; that the state intervening for humanitarian purposes is excused; and that the consequences arising from the intervention for the state acting for humanitarian purposes ought to be mitigated. All three arguments rely either on the defence of necessity, cast as a justification or as an excuse, or on necessity-like reasoning, as the basis for mitigation. This article takes these three claims and draws out the implications of each both within and beyond the law of responsibility. In so doing, this article shows how each of the three arguments is more problematic and less straightforward than it appears at first and that, ultimately, none can provide an adequate legal basis for humanitarian intervention. The legality of humanitarian intervention must be found in the primary rules regulating the use of force in international relations and not in the secondary rules of state responsibility.

Reconstructing the Principle of Nullum Crimen Sine Lege

As a product of scientism and rationalism, the principle of nullum crimen sine lege has been subject to changing times and theoretical assumptions. In practice, therefore, it has not been fully able to play its role in protecting freedom and has constantly wavered over the determination of criminal punishments. Even though it has been constantly challenged, the principle of nullum crimen sine lege should be adhered to and renewed as an important principle of the modern rule of law. First, the principle of de lege lata is being questioned by theories of substantive law, and sources not in the form of law have become the de facto basis of criminal punishment. For this reason, it is necessary to reaffirm the nature of de lege lata as an exclusive source of law. Second, although the possible boundary of the meaning of criminal law texts cannot be clearly delineated empirically, one should not therefore reject the possible boundary of this meaning. The practice of delineating an objective boundary based on empirical facts should be abandoned and normative boundaries should be delineated and justified. Finally, the responsibility for judicial clarity should be recognized and accepted as a supplement to legislative clarity, and a two-tier system of legislative and judicial clarity should be developed. Here, the definite nature of criminal legislation should develop standards in terms of behavioral guidance and judicial restrictions, and clarity in criminal justice should start from the legislative text and establish general secondary rules to make the text more specific, bringing it ever closer to specific and particular case facts, and eventually establishing a relationship of subsumption between the legislative text and the facts of the case.